Badar Iqbal Chaudhary on military courts

Badar Iqbal Chaudhary

Debate continues in Pakistan even though the political parties are mostly on board for military courts. Badar Iqbal Chaudhary has written a smart op-ed for The Dawn citing serious flaws in the military court system:

It is no doubt one of the speediest trial systems, but it comes with many caveats:

1

The decision makers are not experts in fine points of law. These could be officers whose education may entirely have been in mathematics and biology, deciding upon the life of another without understanding what equity demands. The Act does allow for a Judge Advocate's presence — an expert from Army's legal branch — to assist in trial, but it is not necessitated except in the case of the highest level (General martial court).

2 

The system is not governed by precedence. A new panel is formed for each case, and the absence of procedure and precedence allows for decisions to be reached on an equitable basis. Although allowing greater room for manoeuvre to the courts, equity is a questionable yardstick, after all, coming from non-experts; and being a subjective value, how could the fairness and certainty be quantified, and ensured? 

3 

This system is not subject to appeals in the civilian courts, even at the supreme court level. Although a person convicted in military courts may be re-trialed in the civilian courts (as per Article 96 of the Army Act 1952), it goes against the fundamental right of protection against double jeopardy (being prosecuted twice for the same crime — Article 13 of the constitution), despite overriding the section 403 of Criminal procedure code, which too outlaws double punishment.

Admittedly, desperate times require desperate measures, but couldn't the said measures have been novel and revolutionary, instead of solutions reminiscent of the much criticised Frontier Crimes Regulation (FCR)? And who is to say this amendment won't be challenged in the Supreme Court for being in contradiction with fundamental rights? Lastly, why couldn't the government have reformed the civilian Anti-terrorism system functioning since 1997 instead?

The good news, if there is any, is that voices can be and are being raised in opposition to the military courts aspect of the post-Peshawar-massacre response. The Supreme Court of Pakistan has stepped in in the past to protect democracy. Will it again? Can it do so if the Constitution is amended?